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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


Tax  Liens 


[odem  American  Law  Lecture 


Blackstone  Institute,  Chicago 


TAX    LIENS 


BY 


PHILIP  NICHOLS,  A.B.,  LL.B= 


One  of  a  Series  of  Lectwes  Especially  Preparea 
for  the  Blackstone  Institute 


BLACKSTONE     INSTITUTE 
CHICAGO 


Copyright,    1920.    by    Blackstone    Institute 


fvl  5"/^'^  t 


PHILIP  NICHOLS 


PHILIP  NICHOLS 

The  author  of  this  Lecture  has  been  a  member 
of  the  Massachusetts  Bar  for  nearly  twenty  years. 
In  this  long  period  of  practice,  principally  devoted 
to  Constitutional  Law  matters,  he  has  acquired  a 
fund  of  practical  knowledge  on  some  of  the  most 
intricate  problems  of  the  law,  which  will  appeal 
with  unusual  force  to  those  interested  in  Eminent 
Domain,  Taxation  and  Land  Damage  cases. 

Mr.  Nichols  was  born  in  Boston,  July  25,  1875. 
He  received  his  preliminary  education  in  private 
schools  in  Boston,  and  later  entered  Harvard  Col- 
lege, from  which  he  received  the  degree  of  Bachelor 
of  Arts  in  1895.  He  then  entered  Harvard  Law 
School,  from  which  he  received  the  degree  of 
Bachelor  of  Laws  in  1898,  and  was  admitted  to  the 
Massachusetts  Bar  the  same  year. 

Prom  1898  until  1909  he  was  in  the  Law  Depart- 
ment of  the  City  of  Boston,  first  as  Assistant  City 
Solicitor,  and  later  as  Assistant  Corporation  Coun- 
sel. During  this  period  he  handled  many  impor- 
tant cases  involving  Constitutional  points,  which 
has  made  him  an  acknowledged  expert  in  that 
branch  of  law. 

In  1909  Mr.  Nichols  entered  private  practice, 
and  in  1910  entered  into  a  partnership  with  S.  H. 
Hudson,  Esq.,  of  the  Boston  Bar,  and  has  since 
continued  with  this  firm,  which  is  known  as 
"Hudson  and  Nichols." 

Mr.  Nichols  is  the  author  of  "The  Law  of  Land 
Damages  in  Massachusetts,"  which  was  published 
in  1907;  "The  Power  of  Eminent  Domain,"  pub- 
lished in  1909;  "Taxation  in  Massachusetts,"  pub- 
lished in  1913;  and  the  articles  on  "Taxation" 
and  "Eminent  Domain"  in  Modern  American 
Law. 

The  reader  will  find  a  great  deal  of  valuable 
practical  information  on  the  following  pages. 


TAX  LIENS 

By 
Philip  Nichols,  A.B.,  LL.B. 

It  is  a  well  known  historical  fact  that  in  all  parts  of 
the  world  and  in  every  age  the  government  has  never 
restricted  itself  in  the  means  of  collecting  its  revenues 
to  the  remedies  that  individual  citizens  are  permitted 
to  employ  for  the  collection  of  their  private  debts. 
Such  methods  would  be  impracticable  in  the  case  of 
a  government,  the  very  life  of  which  in  time  of  war 
or  rebellion  depends  upon  the  prompt  raising  of  large 
sums  of  money;  and  even  in  times  of  peace  grave 
embarrassments  would  ensue  if  the  political  oppo- 
nents of  the  party  in  power,  as  well  as  its  impecunious 
and  dilatory  supporters,  were  permitted  to  delay  the 
payment  of  their  taxes  until  the  government  had  sued 
them  and  recovered  judgment  in  an  ordinary  civil 
action  at  law.  Accordingly  there  have  grown  up 
in  every  state  and  nation  special  methods  for  the 
rapid  and  effective  collection  of  taxes,  and  of  these, 
the  enforcement  of  a  lien  on  real  estate  is  now  the 
most  often  invoked  in  this  country  and  has  given 
rise  to  the  largest  amount  of  litigation. 

ORIGIN  OF  TAX  ON  REAL  ESTATE 

The  system  of  taxing  real  estate  at  its  capital  or 
principal  value  or  at  a  certain  proportion  of  the  same, 

5 


6  MODERN  AMERICAN  LAW  LECTURE 

now  so  generally  prevalent  throughout  the  United 
States,  was  not  one  of  the  institutions  imported  from 
the  mother  country  at  the  time  of  the  settlement  of 
the  American  colonies.  In  fact  the  whole  modern 
system  of  taxation,  in  distinction  to  the  arbitrary 
methods  of  raising  money  in  use  during  the  feudal 
period,  was  introduced  into  England  from  Holland 
after  the  colonial  governments  in  more  than  one 
American  colony  had  been  established,  and  the  growth 
and  development  of  a  modern  taxing  system  pro- 
ceeded in  England  at  the  same  time  as  in  the  colonies, 
in  some  particulars  upon  the  same,  but  in  others  upon 
quite  divergent  lines.  In  1656  a  tax  was  imposed  by 
Parliament  upon  the  income  of  real  estate,  and  the 
method  since  employed  of  taxing  real  estate  in  Eng- 
land has  been  upon  its  annual  return.  In  Massachu- 
setts, however,  it  was  provided  as  early  as  1651  that 

"the  lands  and  estates  of  all  men  shall  be 
rated  for  all  town  charges  ....  where  the 
lands  and  estates  shall  lie  and  their  persons 
where  they  dwell." 

The  principle  of  assessing  land  at  its  capital  value 
at  the  same  rate  as  personal  property  was  thus  estab- 
lished in  early  times  and  was  generally  adopted 
throughout  the  American  colonies.  It  was  not  for 
many  years,  however,  that  the  tax  on  real  estate  was 
made  a  lien  on  the  land  or  was  enforced  by  sale.  The 
primary  method  of  collecting  taxes  in  early  times, 
whether  on  real  or  personal  property,  was  by  distress 
and  sale  of  goods  and  chattels.  The  right  to  distrain 
personal  property  for  non-payment  of  taxes  was  not 


TAX  LIENS  T 

the  same  as  the  right  to  enforce  a  lien,  because  the 
property  owned  by  an  individual  at  the  time  of  the 
assessment  and  on  account  of  which  the  assessment 
was  made  was  not  subject  to  distress  if  it  had  been 
sold  to  another  person  since  the  assessment,  while  on 
the  other  hand  property  belonging  to  the  person 
assessed  might  be  taken  on  distress,  although  it  was 
not  the  property  on  account  of  which  the  tax  had 
been  assessed.  If  the  person  assessed  had  not  suffi- 
cient goods  which  might  be  distrained  to  pay  the  tax, 
he  was  subject  to  arrest  and  imprisonment  until  the 
tax  was  paid.  Arrest  and  imprisonment  for  non- 
pajmient  of  taxes  is  still  authorized  by  law  in  some 
of  the  states,  although  of  course  the  person  arrested 
is  released  upon  taking  the  poor  debtor's  oath  or 
otherwise  satisfying  the  authorities  that  he  is  unable 
to  pay  the  tax. 

ORIGIN  OF  TAX  SALES 

The  collection  of  taxes  on  real  estate  by  distress 
and  arrest  was  a  satisfactory  method  in  the  primitive 
conditions  which  prevailed  in  earlier  times.  Real 
estate  was  not  of  great  value,  and  the  public  expendi- 
tures were  small,  so  that  the  sums  assessed  on  real 
estate  were  not  large,  and  as  the  real  estate  in  any 
towTi  w^as  generally  owned  by  the  people  who  had  set- 
tled the  town  and  were  living  on  the  soil,  it  was  a 
simple  matter,  if  a  tax  remained  unpaid,  to  seize  and 
sell  the  cattle  of  the  delinquent,  or  otherwise  satisfy 
the  tax  out  of  his  visible  and  tangible  personal  prop- 
erty.   When,  however,  means  of  communication  be- 


8  MODERN  AMERICAN  LAW  LECTURE 

tween  the  different  towns  improved,  and,  as  society 
became  more  complex,  persons  resident  in  one  town 
began  to  invest  their  money  and  have  business  rela- 
tions in  other  places,  difficulties  arose  in  collecting 
taxes  on  real  estate.  One  of  the  earliest  statutes,  if 
not  the  earliest,  pro^dding  for  the  collection  of  a  tax 
on  real  estate  by  a  sale  of  the  land  was  enacted  in 
Massachusetts  in  1731.  This  statute  applied  only  to 
unimproved  lands  of  non-residents,  and  provided 
that,  if  the  tax  was  not  paid,  three  freeholders,  to  be 
appointed  by  the  assessors,  should  "aprize  so  much 

of  such lands as  they  judge  will 

be  sufficient  to  pay  and  satisfy"  the  taxes  and  charges, 
and  that,  the  default  continuing,  the  part  thus  ap- 
prized should  be  sold,  and  a  deed  thereof  be  given  to 
the  highest  bidder.  If  the  part  apprized  sold  for 
more  than  enough  to  discharge  the  tax  and  charges, 
the  surplus  was  to  be  paid  to  the  "delinquent  pro- 
prietors." It  was  not  until  1785  that  the  power  to 
sell  land  for  non-payment  of  taxes  in  Massachusetts 
was  extended,  and  then  only  to  include  cases  in  which 
the  landowner  had  removed  out  of  the  to\\Ti.  A  lien 
was  at  the  same  time  also  imposed  on  the  improved 
land  of  a  non-resident  of  the  state,  the  power  of  sale 
in  the  latter  case  being  the  exclusive  remedy.  In  1821 
taxes  on  real  estate  in  Boston  were  made  a  lien  in  all 
cases,  and  two  years  later  the  lien  was  made  general 
throughout  the  state.  The  system  of  collecting  taxes 
on  real  estate  by  lien  and  sale  was  adopted  generally 
throughout  the  United  States,  and  by  1855  was  in 
force  in  every  state  and  had  at  various  times  been 
employed  by  the  federal  government  as  well. 


TAX  LIENS  9 

TAX  TITLE  A  NEW  AND  PARAMOUNT  TITLE 

Taxes  on  real  estate  are  not,  as  a  rule,  assessed  upon 
real  estate  regardless  of  ownership,  but  are  assessed 
npon  individuals  by  reason  of  their  ownership,  and 
although  such  taxes  constitute  a  lien  upon  the  land, 
the  primary  liability  is  upon  the  person  to  whom  they 
have  been  assessed.  It  is  not,  however,  the  policy  of 
the  law  to  require  the  assessors  to  tax  the  different 
estates  and  interests  which  may  exist  in  a  different 
parcel  of  land  to  the  respective  owners  thereof,  as 
for  example,  landlord  and  tenant,  mortgagor  and 
mortgagee,  owner  of  an  easement  and  o^Tier  of  the 
fee.  Instead  one  person  or  set  of  persons  is  taken 
as  representing  all  the  interests  in  each  parcel  of  Ian*"", 
as  against  the  public,  and  is  assessed  the  entire  h 
on  such  parcel,  and  such  person  must  be  either  t. 
owner  of  the  fee  or  the  person  in  possession  of  ti 
land.  There  are  some  exceptions  to  this  rule ;  some- 
times an  easement  in  gross  is  assessed  to  its  holder, 
and,  when  one  estate  or  interest  in  a  piece  of  land  is 
exempt  from  taxation  and  the  others  are  not,  it  may 
be  proper  to  assess  the  latter  estates  at  their  o^ti 
value  and  not  at  the  value  of  the  land  itself,  but  ordi- 
narily the  land  is  assessed  at  its  entire  value  and  not 
the  different  estates  therein. 

The  tax  being  then  upon  the  entire  undivided  own- 
ership of  the  land  itself,  the  method  of  collection  by 
lien  and  sale  follows  this  rule  and  even  goes  beyond 
it.  If  the  tax  is  not  paid,  the  collector  of  taxes  sells 
the  land,  or  part  of  it,  at  a  public  sale  and  thus  is 
enabled  to  pay  the  amount  of  the  tax  into  the  town 


iO  MODERN  AMERICAN  LAW  LECTURE 

treasury  from  the  purchase  price.  If  the  land  has 
been  sold  by  the  owner  after  the  tax  has  been  assessed, 
the  sale  by  the  tax  collector  is  none  the  less  valid,  for 
a  lien  for  the  amount  of  the  tax  attaches  to  the  land. 
What  the  tax  collector  sells  is  not  the  estate  or  inter- 
est of  the  person  assessed,  subject  to  such  flaws  and 
imperfections  as  it  may  have,  nor  even  the  sum  of  all 
the  estates  or  interests  in  the  land,  but  a  new  and 
paramount  title  created  by  law,  and  not  affected  by 
mortgages,  leases,  easements  or  encumbrances  of  any 
kind  that  existed  before  the  sale. 


REQUIREMENTS  OP  LAW  MUST  BE  FOLLOWED 
STRICTLY 

The  sale  of  land  for  non-payment  of  taxes  has  been 
found  necessary  for  the  maintenance  of  our  govern- 
ment and  institutions,  and  is  unquestionably  a  con- 
stitutional method  of  collecting  public  revenues,  but 
it  is  such  an  extreme  and  drastic  interference  with 
private  property  that  the  law  guards  the  rights  of  the 
owner  with  the  utmost  care.  There  must  be  as  its 
foundation  a  tax  lawfully  assessed  by  a  lawful  board 
of  assessors.  If  the  tax  was  assessed  for  an  illegal 
or  unauthorized  purpose  or  if  there  was  failure  on 
the  part  of  the  assessors  to  comply  with  all  the  pro- 
visions of  law  which  are  intended  for  the  security 
of  the  citizen,  for  insuring  an  equality  of  taxation, 
and  to  enable  everyone  to  know  for  what  property 
he  is  taxed  and  for  what  all  those  who  are  liable  \vith 
him  are  taxed,  there  is  no  lien  upon  the  land  and  no 
matter  how  carefully  the  sale  is  conducted  no  title 


TAX  LIENS  11 

passes  to  the  purchaser.  Even  if  the  failure  to  com- 
ply wdth  the  law  was  at  the  express  request  of  the 
person  assessed,  although  the  tax  might  be  collected 
from  him  by  other  means,  there  will  be  no  lien  upon 
his  land.  Many  regulations  are,  however,  made  by 
statute  which  are  designed  for  the  information  of 
assessors  and  other  officers  and  intended  to  promote 
method,  system  and  uniformity  in  the  modes  of  pro- 
cedure, compliance  or  non-compliance  with  which  in 
no  respect  affects  the  rights  of  taxpaying  citizens. 
Such  provisions  may  be  considered  directory  merely, 
and  non-compliance  with  them  does  not  affect  the 
validity  of  the  tax  or  of  the  lien  for  its  payment. 
Similarly,  technical  defects  in  the  appointment  of 
the  assessors  or  of  the  collector  do  not  invalidate  a 
sale ;  it  is  sufficient  that  they  are  officers  de  facto.  If 
they  exercised  their  office  unopposed  it  will  be  as- 
sumed that  they  were  duly  chosen  and  sworn. 

With  regard  to  the  actions  of  the  collector  in  sell- 
ing the  land  the  law  is  much  more  strict.  It  is  hardly 
necessary  to  state  that  to  justify  the  sale  of  land  for 
non-pajTuent  of  taxes  there  must  be  a  statute  to  au- 
thorize it;  a  city  or  to^^^l  which  has  power  to  levy 
taxes  on  real  estate  has  no  lien  to  enforce  such  taxes 
unless  it  has  been  given  such  lien  by  act  of  legislature. 
Furthermore,  the  statute  authorizing  the  lien  and 
sale  must  be  complied  with  in  every  respect ;  the  due 
performance  of  each  step  in  the  proceedings  even  in 
the  most  minute  particulars  is  a  condition  precedent 
to  the  validity  of  the  sale.  That  a  deviation  from  the 
statutory  requirements  did  not  harm  the  owner  in  the 
slightest  degree  has  never  been  held  to  be  a  reason  for 


12  MODERN  AMERICAN  LAW  LECTURE 

overlooking  it,  and  the  courts  have  sometimes  shown 
such  astuteness  in  picking  flaws  in  the  procedure  of  a 
tax  sale  that  it  almost  seems  that  the  failure  to  dot 
an  *'i"  or  cross  a  '*t"  in  any  of  the  numerous  docu- 
mentary forms  may  be  fatal. 

METHODS  OF  ENFORCING  LIEN 

Although  of  course  the  procedure  for  the  enforce- 
ment of  tax  liens,  being  wholly  statutory,  varies 
widely  in  the  different  states,  there  are  two  distinct 
methods  employed,  within  one  of  which  the  method 
employed  by  every  state  seems  to  fall.  The  original 
method,  which  still  prevails  in  most  jurisdictions,  con- 
sists of  merely  a  sale  by  the  collector  without  the  con- 
firmatory aid  of  judicial  proceedings,  leaving  the 
owner  a  chance  to  attack  the  sale  or  redeem  the  prop- 
erty by  proceedings  which  he  himself  institutes.  The 
other  method,  which  has  been  adopted  in  a  few  states, 
consists  of  a  sale  in  the  usual  manner,  followed,  how- 
ever by  a  foreclosure  of  the  lien  by  judicial  proceed- 
ings instituted  by  the  purchaser,  and  while  the  latter 
method  seems  on  its  face  less  drastic  than  the  f oi-mer, 
it  is  really  less  favorable  to  the  owner,  since  it  leaves 
him  no  opportunity  to  redeem  the  property  or  to 
attack  the  validity  of  the  sale  once  the  judgment  of 
foreclosure  has  been  entered. 

DURATION  AND  EXTENT  OP  LIEN 

The  date  when  the  lien  begins  and  ends  is  of  course 
fixed  by  statute,  but  in  most  states  there  is  no  lien 
until  the  assessment  is  made  and  the  extent  of  the 


TAX  LIENS  13 

lien  determined.  In  some  states,  however,  the  lien 
fastens  itself  on  the  property  upon  the  first  moment 
of  the  day  as  of  wlien  the  taxes  are  assessed,  which  is 
generally,  in  actual  practice,  several  months  before 
the  actual  assessment  of  the  tax  and  even  longer  be- 
fore the  tax  bills  are  sent  out.  The  lien  lasts  for  a 
period  fixed  by  law,  generally  about  two  years,  after 
the  assessment,  during  which  time  any  purchaser 
of  the  land  takes  it  subject  to  the  lien.  After  the 
two  years  it  is  the  usual  rule  that  the  lien  continues 
indefinitely  while  the  land  remains  in  the  ownership 
of  the  person  to  whom  it  was  assessed,  and  the  land 
may  be  sold  by  the  tax  collector  at  any  time  until  the 
tax  is  paid;  but  if  the  owner  sells  it  after  the  two- 
year  period  has  expired  and  before  the  collector  has 
instituted  proceedings  to  sell  the  land  or  enforce  the 
lien  the  purchaser  gets  a  clear  title.  The  lien  also 
of  course  terminates  upon  the  payment  of  the  tax 
by  the  person  assessed. 

Several  separate  parcels  of  real  estate  taxable  to 
one  person  are  not  an  integral  subject  of  taxation, 
so  that  one  parcel  can  be  sold  for  taxes  on  the  whole, 
or  on  any  other  parcel  than  that  on  which  the  tax  was 
assessed.  Difficult  questions  sometimes  arise  in  de- 
termining what  constitute  separate  parcels,  but  when 
two  parcels  were  in  fact  separately  valued  by  the 
assessors,  it  conclusively  appears  that  no  such  diffi- 
culty existed.  Even  if  the  assessors  make  an  entire 
valuation,  if  the  lands  are  in  fact  separated  by  the 
use  or  purpose  to  which  they  are  devoted  or  by  their 
mode  of  occupation,  or  are  disconnected  in  location, 
a  tax  laid  generally  cannot  be  made  a  lien  upon  each 


14  MODERN  AMERICAN  LAW  LECTURE 

separate  parcel,  even  when  they  are  all  owned  or 
occupied  by  the  same  i:)erson. 

THE  NOTICE  OF  SALE 

The  proceedings  for  the  enforcement  of  a  tax  lien 
by  sale  of  the  property  are  generally  begun  by  a 
demand  on  the  person  assessed,  and  if  the  demand  is 
not  served  in  the  manner  provided  by  law  the  whole 
proceedings  are  invalid,  even  if  the  demand  was 
actually  received  by  the  person  assessed.    If  the  tax 
is  not  paid  within  a  certain  time  after  demand,  the 
collector  proceeds  to  advertise  the  property  for  sale. 
The  statutory  requirements  in  regard  to  the  advertis- 
ing are  very  strictly  enforced.    If  a  newspaper  is  the 
medium  of  advertisement,  the  notice  of  sale  should  be 
printed    in    English,    in    a   newspaper    printed    in 
English,  and  published  or  circulating  in  the  town  or 
county  in  which  the  land  is  situated.    The  object  of 
the  notice  is  to  inform  the  owner,  as  well  as  the  pub- 
lic generally,  that  the  land  is  to  be  sold.    The  notice 
should  be  sufficiently  definite  to  enable  the  o^^aler  and 
those  who  attend  the  sale  as  prospective  purchasers 
to  identify  the  premises,  so  that  the  owner,  if  he 
wishes,  may  prevent  the  sale  by  the  payment  of  the 
tax,  or,  if  a  sale  takes  place,  bidders  will  be  attracted 
and  will  compete  for  the  purchase  of  the  land.    The 
formalities  of  a  technical  survey  are  not  required, 
and  a  slight  misdescription  will  not  invalidate  the 
sale,  but  the  purpose  of  requiring  a  notice  to  be 
printed  plainly  is  that  the  taxpayer  and  the  bidder 
alike,  with  the  description  as  published  in  hand,  can 
from  its  contents  substantially  locate  the  land  which 


TAX  LIENS  15 

it  is  proposed  to  sell.  A  description  in  the  notice 
which  fails  to  comply  with  these  requirements  renders 
the  whole  proceedings  void.  Similarly  sales  have 
been  invalidated  for  such  errors  in  the  notice  as  fail- 
ing to  state  correctly  the  year  for  which  the  tax  was 
assessed,  or  the  amount  of  the  tax.  On  the  other 
hand  it  has  been  held  that  if  a  notice  states  incor- 
rectly something  it  is  not  required  to  state  at  all,  if  it 
is  otherwise  not  misleading,  the  error  does  not  invali- 
date the  sale.  If  the  notice  advertises  that  the  sale 
will  be  conducted  in  a  manner  not  authorized  by  law, 
but  in  fact  the  sale  is  carried  out  in  full  compliance 
with  the  statutes,  the  sale  is  none  the  less  invalid; 
for  a  valid  notice  is  a  condition  precedent  to  the 
validity  of  the  sale.  It  is  generally  required,  in  addi- 
tion to  publication  in  a  newspaper,  that  notice  of  the 
sale  be  posted  in  some  public  place  in  the  city  or  town, 
and  in  such  a  case  it  must  affirmatively  appear  not 
only  that  the  notice  was  posted,  but  that  it  was  posted 
in  a  public  place. 

METHODS  OF  DISPOSING  OF  SURPLUS 

As  the  tax,  if  it  has  been  fairly  assessed,  in  the 
nature  of  things  amounts  to  but  a  small  proportion 
of  the  value  of  the  land,  various  methods  have  been 
employed  in  the  attempt  to  secure  pa\incnt  of  the  tax 
without  the  unnecessary  hardship  upon  the  delin- 
quent landowner  which  forfeiture  of  the  land  would 
involve.  One  method  is  to  sell  the  whole  land,  and 
return  any  surplus  over  the  amount  of  the  tax  and 
charges  to  the  landowner.  This  method,  however, 
presupposes   a   genuine;  sale  with  spirited  bidding 


16  MODERN  AMERICAN  LAW  LECTURE 

reaching  eventually  the  full  S^alue  of  the  land,  which 
rarely  is  the  case  in  tax  sales;  it  raises  intolerable 
complications  in  determining  who  is  entitled  to  the 
surplus,  since  one  of  the  most  frequent  causes  of 
failure  to  pay  taxes  on  real  estate  is  uncertainty  as 
to  the  title  or  the  existence  of  encumbrances  to  such 
an  extent  that  the  nominal  owner  has  no  sufficient  in- 
terest in  the  property  to  make  it  worth  his  while  to 
pay  the  taxes  on  it.  Another  old-fashioned  method 
was  to  set  off  in  advance  of  the  sale  the  smallest  por- 
tion of  the  land  that  would  cover  the  tax  and  charges ; 
but  the  land  might  not  be  capable  of  convenient  sub- 
division, and  the  portion  set  off  might  prove  too  small 
or  too  large.  If  too  small  no  sale  would  take  place, 
and  the  advertising  w^ould  have  to  be  done  all  over 
again ;  if  too  large,  all  the  complications  over  return- 
ing the  surplus  would  arise.  Another  method  was  to 
strike  off.  the  land  to  the  bidder  who  would  take  the 
smallest  undivided  interest  in  it,  so  that  the  bidding 
instead  of  going  up  in  figures  of  dollars  and  cents, 
goes  down  in  fractional  interests  in  the  land.  The 
drawback  to  such  a  method  is  that  it  complicates  land 
titles  and  leaves  estates  divided  in  such  a  way  that 
they  are  left  almost  unmarketable,  if  it  is  carried  out 
in  the  manner  contemplated  by  law,  and,  in  its  prac- 
tical operation,  it  often  happens  that  no  one  bids  for 
less  than  the  whole. 

REAL  NATURE  OF  TAX  TITLE 

It  has  already  been  explained  that  the  title  that 
passes  at  a  tax  sale  is  a  new  and  paramount  title; 
but  if  a  person  who  is  bound  to  pay  the  tax  purchases 


TAX  LIENS  17 

the  land  at  the  sale,  his  act  amounts  to  no  more  than 
the  pajTxient  of  the  tax  and  his  title  is  no  more  para- 
mount than  it  was  before  the  sale.  A  mortgagor  can- 
not wipe  out  the  mortgage  by  failing  to  pay  the  tax 
on  the  land  and  then  buying  it  in  at  the  tax  sale; 
neither  can  the  mortgagee  in  possession  by  similar 
tactics  deprive  the  mortgager  of  his  right  to  redeem. 
A  life  tenant  cannot  acquire  any  adverse  rights 
against  the  remainderman  by  a  tax  sale,  nor  can  a 
right  of  way  be  wiped  out  by  a  like  simple  device  on 
the  part  of  the  owner  of  the  servient  tenement. 

After  the  property  has  been  struck  off,  the  tax 
collector  must  give  the  purchaser  a  deed ;  and  many 
are  the  pitfalls  which  must  be  avoided  in  preparing 
a  valid  tax  deed.  The  deed  must  correctly  recite  that 
the  various  necessary  conditions  precedent  to  a  valid 
sale  have  been  complied  with,  and  it  must  describe 
the  land  sold  with  accuracy,  and  the  land  sold  must 
be  the  land  assessed,  no  more  and  no  less.  If  the 
deed  for  any  reason  proves  invalid,  the  purchaser 
has  no  redress  against  the  tax  collector  who  made  the 
sale,  or  against  the  city  or  town,  unless  a  statute 
specifically  gives  such  redress. 

The  OTVTier  of  the  land  is  almost  invariably  given 
a  certain  period  in  which  he  may  redeem  the  land 
from  the  tax  title  upon  pajTuent  of  the  purchase  price 
and  certain  fees  and  charges  of  the  purchaser  and 
interest,  usually  at  a  high  rate.  The  real  purpose 
of  a  tax  sale  is  to  enable  the  city  or  town  to  collect 
quickly  the  money  needed  to  perform  its  many  public 
functions  and  to  throw  upon  the  purchaser  the  duty, 
accompanied  by  suitable  pecuniary  rewards,  of  mak- 


18  MODERN  AMERICAN  LAW  LECTURE 

ing  the  unwilling  and  delinquent  taxpayer  eventually 
yield  up  the  amount  of  the  tax  by  the  imposition  of 
increasing  pecuniary  penalties  finally  amounting  to 
forfeiture  only  as  a  last  resort ;  in  other  words,  a  tax 
title  in  spite  of  its  paramount  nature  is,  until  the 
right  of  redemption  is  finally  lost,  in  reality  a  lien, 
and  the  holder  of  the  right  of  redemption  is  still,  in 
reality,  the  owner  of  the  land. 

As  early  as  1813  the  highest  court  of  one  of  the 
states  referred  to  a  "collector's  title"  as  proverbially 
expressing  a  case  of  doubt  and  difficulty,  and  it  is 
certainly  true  that  a  tax  title  is  extremely  precarious. 
It  may  be  attacked  for  the  omission  of  or  an  error  in 
any  one  of  dozens  of  formal  steps,  and,  even  if  there 
is  no  such  error  and  the  purchaser  takes  possession, 
he  cannot  be  certain  of  his  title  for  many  years,  since 
there  is  a  long  period  in  which  the  land  may  be  re- 
deemed, sometimes  running  from  the  time  when  the 
owner  had  actual  notice  of  the  sale,  a  matter  often 
difficult  of  proof.  All  these  possibilities  make  a  tax 
title  almost  unmarketable  except  for  the  tax  and 
charges  upon  w^hich  it  was  based.  The  true  nature 
of  a  tax  sale,  notwithstanding  the  letter  of  the  statutes, 
is  the  transfer  of  the  lien.  The  courts  will  generally 
protect  the  purchaser  in  recovering  from  the  owner 
the  amount  he  has  paid,  before  the  land  is  redeemed, 
but  a  purchaser  who  buys  land  at  a  tax  sale  intending 
to  retain  and  enjoy  it  as  his  own  finds  himself 
frowned  upon  and  thwarted  by  the  courts,  which  will 
almost  always  manage  to  find  a  way  to  give  the  owner 
back  his  land  if  he  has  allowed  his  rights  to  lapse 
through  no  serious  fault  of  his  o\\ti. 


TAX  LIENS  19 


REDEMPTION 


The  title  to  land,  subject  to  a  tax  sale,  is  dealt  in 
as  real  estate  subject  to  an  encumbrance  merely,  and 
the  right  of  redemption  runs  with  the  land.  It  is 
treated  by  the  law  as  an  interest  in  land  which  may 
be  conveyed  or  devised,  and  which  descends  in  the 
same  manner  as  other  real  property.  The  right  of- 
redemption  is  not  confined  to  the  owner  of  the  fee, 
but  inures  to  anyone  having  an  interest  in  the  prop- 
erty, such  as  a  mortgagee  or  even  an  attaching  cred- 
itor. The  effect  of  payment  or  tender  by  the  o^^Tier 
to  the  purchaser  of  the  amount  due,  within  the  time 
allowed  by  law  for  redemption,  is  to  defeat  the  legal 
estate  of  the  purchaser  and  to  leave  the  title  and 
right  of  possession  where  they  would  have  been  if 
the  sale  for  taxes  had  never  taken  place.  The  owner 
may  at  once  proceed  at  law  to  regain  possession.  If 
the  purchaser  secretes  himself  so  that  the  owner  is 
unable  to  tender  to  him  the  amount  due,  actual  tender 
is  excused ;  and  the  eif  ect  upon  the  title  is  the  same 
as  if  tender  had  been  made.  A  tax  title  is  not  merged 
with  other  clauns  on  the  land,  and  if  a  person  having 
an  interest  in  the  land  buys  the  tax  title,  he  does  not 
lose  his  original  interest  upon  the  redemption  of  the 
tax  title.  If  a  person  who  has  no  right  to  redeem  the 
property  goes  through  the  form  of  redemption,  the 
transaction  is  void ;  he  cannot  treat  it  as  a  purchase 
of  the  tax  title. 

When  the  property  is  assessed  to  the  owner  in  pos- 
session, as  it  is  his  duty  to  look  after  the  pa^^nent 
of  taxes,  his  right  of  redemption  runs  for  a  fixed 


20  MODERN  AIMERICAN  LAW  LECTURE 

period  after  the  sale,  of  whicli  he  is  presumed  to  have 
notice.  Provision  is  often  made  by  statute  for  re- 
demption by  persons  interested  in  the  property  who 
might  well  have  no  actual  knowledge  of  the  sale  and 
upon  whom  no  demand  for  payment  would  naturally 
be  made,  such  as  mortgagees  not  in  possession,  or  the 
actual  owner  when  the  land  was  assessed  to  an  occu- 
pant not  the  owner,  or  when  it  was  assessed  to  ''per- 
sons unknown"  or  when  there  was  a  substantial  or 
misleading  error  in  the  name  of  the  person  taxed. 
In  such  a  case  the  right  of  redemption  generally  runs 
from  the  time  such  person  receives  notice  of  the  sale, 
and  actual  knowledge  by  such  person  or  a  duly  accred- 
ited agent  must  be  shown.  Knowledge  of  circum- 
stances sufficient  to  put  him  on  inquiry  is  not  enough. 
The  right  to  redeem  after  actual  notice  is,  like  the 
right  to  redeem  within  a  fixed  period  after  the  sale, 
an  interest  in  the  land  which  passes  with  any  at- 
tempted conveyance  of  the  land  itself. 

PAYMENT  TO  THE  TAX  COLLECTOR 

The  practice  of  some  tax  title  buyers  of  secreting 
themselves  until  after  the  time  of  redemption  has 
expired,  so  that  no  tender  can  be  made  to  them,  has 
led  to  the  adoption  in  some  states  of  statutes  provid- 
ing that  pa^Tnent  may  be  made  by  the  o\vner  to  the 
collector  of  taxes,  who  keeps  the  money  so  paid  in 
readiness  to  turn  it  over  to  the  holder  of  the  tax  title, 
upon  demand.  The  collector  gives  the  owner  a  cer- 
tificate showing  the  payment,  which  may  be  recorded 
in  the  registry  of  deeds.  Although  such  statutes  have 
some  merit,  there  are  distinct  limitations  upon  the 


TAX  LIENS  21 

effectiveness  of  the  remedy  furnished  by  them.  Com- 
pliance with  the  terms  of  the  statute  would  still  leave 
the  tax  deed  outstanding  upon  the  record,  and  al- 
though its  legal  effect  would  be  neutralized  by  the 
certificate  provided  for  in  the  statute,  it  might  con- 
stitute a  practical  impairment  of  the  ease  of  trans- 
ferring title.  Moreover,  it  might  be  impossible  to 
ascertain  the  precise  amount  due  without  conferring 
in  person  with  the  purchaser,  and  the  owner  could 
protect  himself  with  certainty  only  by  depositing 
with  the  tax  collector  the  largest  amount  which  could 
under  any  circumstances  be  required.  Hence  it  re- 
mains highly  desirable  that  an  owner  seeking  to 
redeem  his  property  from  a  tax  title  should  be  able 
to  find  the  purchaser  and  get  from  him  a  correct  state- 
ment of  the  amount  necessary  for  redemption. 

Although,  as  already  stated,  in  the  absence  of 
statute  one  x^urchases  a  tax  title  at  his  own  risk,  and 
if  it  proves  defective  is  not  entitled  to  any  redress, 
in  many  states  provision  is  made  by  statute  for  the 
surrender  of  a  tax  title  that  proves  invalid,  and  the  re- 
payment to  the  purchaser  of  the  sum  advanced  by  him, 
with  interest.  Such  statutes  are  not  regarded  as  indi- 
cating the  policy  of  the  law,  and  to  get  the  benefit  of 
the  statute  a  purchaser  must  bring  himself  within 
its  precise  teims. 

EQUITABLE  REMEDIES 

The  redemption  of  land  from  a  valid  sale  for  non- 
payment of  taxes  within  or  without  the  period 
allowed  b^  statute  for  redemption  is  not  within  the 


22  MODERN  AMERICAN  LAW  LECTURE 

general  powers  of  a  court  of  equity.  After  the  statu- 
tory period  has  expired  an  owner  who  w^as  prevented 
by  the  fraud  and  deception  of  the  purchaser  from 
redeeming  the  property  could  have  no  relief  in  equity, 
and  if  he  desired  to  redeem  before  the  period  expired 
he  had  an  adequate  remedy  at  law.  Modern  legisla- 
tion has,  however,  in  many  states  given  courts  of 
equity  jurisdiction  over  the  redemption  of  land  from 
tax  sales,  even  after  the  statutory  period  of  redemp- 
tion at  law  has  expired.  The  effect  of  such  a  statute 
is  two-fold.  In  the  first  place  it  permits  an  owner 
who  is  entitled  by  law  to  redeem  the  land,  the  statu- 
tory period  not  having  expired,  instead  of  pursuing 
his  remedy  of  writ  of  entry  or  other  proceeding  upon 
the  law  side  of  the  court,  to  effect  the  redemption  by 
proceedings  in  equity,  and  to  this  extent  it  is  merely 
a  change  in  remedy.  In  the  second  place  it  gives  an 
owner,  whose  right  to  redeem  at  law  has  been  lost 
by  the  expiration  of  the  statutory  period,  the  privi- 
lege of  redeeming  the  land  in  equity  during  a  subse- 
quent term  of  years,  provided  the  circumstances  make 
it  just  and  equitable  that  he  be  allowed  to  do  so ;  and 
to  this  extent  it  is  a  change  in  substantive  rights.  It 
would  be  unwise  to  attempt  an  inclusive  definition  of 
the  circumstances  which  would  render  it  just  and 
equitable  that  an  owner  should  be  allowed  to  redeem 
after  the  period  for  redemption  at  law  has  expired ; 
but  deception  or  evasion  by  the  purchaser,  excusable 
mistake  or  ignorance  of  facts  by  the  owner,  the  minor- 
ity of  the  owner  or  his  absence  from  the  state  would 
present  grounds  which  the  courts  would  be  inclined 
to  look  upon  with  favor.    If  the  bill  to  redeem  is 


TAX  LIENS  23 

maintained,  the  court  will  order  the  purchaser  to 
execute  a  quitclaim  deed  to  the  owner  upon  payment 
of  the  amount  found  to  be  due. 

When  land  is  sold  for  non-payment  of  taxes,  but, 
by  reason  of  some  flaw  in  the  proceedings,  the  sale  is 
void  and  conveys  no  title,  but  the  purchaser  causes 
the  deed  to  be  recorded  and  refuses  to  release  his  title 
to  the  owner,  and  the  owner  is  in  possession  and  can- 
not try  his  title  by  writ  of  entry,  he  may  maintain  a 
bill  in  equity  to  remove  the  cloud  upon  his  title  and 
to  compel  the  purchaser  to  give  him  a  deed  of  release. 
Such  a  bill  may  be  maintained  whether  the  invalidity 
of  the  sale  is  due  to  a  flaw  in  the  proceedings,  or  to 
the  unconstitutionality  of  the  statute  under  which  the 
tax  was  assessed.  The  right  to  maintain  a  bill  in 
equity  under  such  circumstances  is  not  derived  from 
a  statute  such  as  was  referred  to  in  the  preceding 
paragraph,  but  rests  upon  the  general  equity  juris- 
diction of  the  court,  and  is  consequently  not  subject 
to  the  limitations  imposed  by  such  a  statute,  and  may 
be  enjoyed  in  jurisdictions  in  which  no  such  statute 
has  been  enacted. 

If  a  collector  of  taxes  was  about  to  sell  land  for  a 
tax  which  the  owner  contended  to  be  invalid,  or  for 
which  he  contended  no  lien  rested  upon  his  land,  it 
was  formerly  the  rule  that  the  ovmer  could  not  main- 
tain a  bill  in  equity  to  enjoin  the  collector  from 
making  the  sale.  The  prompt  and  unembarrassed 
collection  of  taxes  w^as  considered  to  be  of  so  much 
importance  to  the  public  that  the  o^^^Tier  was  left 
under  such  circumstances  to  his  remedy  at  law  to 
prevent  the  sale,  by  paying  the  tax  under  protest 


24  MODERN  AMERICAN  LAW  LECTURE 

and  suing  to  recover  it  back.  If  he  was  unable  or 
unwilling  to  pay  the  tax,  and  the  sale  took  place,  he 
might  then  avoid  its  effect,  if  the  tax  was  illegal,  by- 
bringing  a  bill  in  equity  to  remove  the  cloud  upon 
his  title,  or  if  he  had  been  evicted  from  the  premises 
by  the  purchaser,  by  a  wTit  of  entry  to  recover 
possession.  This  rule  has,  however,  been  broken  in 
on  so  much  in  many  jurisdictions  that  it  may  fairly 
be  said  to  be  more  honored  in  the  breach  than  in 
the  observance,  and  while  it  is  strictly  enforced  in 
a  few  states,  in  most  of  the  others  so  many  excep- 
tions and  qualifications  have  been  introduced  that 
the  rule  itself  is  to  all  intents  and  purposes  obsolete, 
and  a  bill  in  equity  to  enjoin  the  sale  appears 
to  be  the  normal  method  of  testing  the  validity  of  a 
tax  on  real  estate. 

The  owTier  of  land  sold  for  non-payment  of  taxes 
who  makes  the  proper  tender  or  pajnnent  to  the  pur- 
chaser within  the  time  prescribed  by  statute  thereby 
defeats  the  purchaser's  legal  estate  and  becomes  again 
the  legal  owner  himself.  If  the  owner  has  remained 
in  possession  and  the  purchaser  refuses  to  give  him  a 
deed  of  release  the  owner's  only  remedy  is  in  equity, 
but  if  the  purchaser  took  possession  and  refuses  to 
give  it  up,  the  owner  may  maintain  a  writ  of  entry. 
The  owner  of  land  which  a  tax  collector  has  purported 
to  sell  for  non-pa}Tnent  of  taxes,  but  the  sale  of  which 
is  in  fact  invalid,  is  in  the  same  position  as  an  owner 
who  has  made  lawful  tender  to  redeem  from  a  valid 
sale.  If  his  possession  has  been  disturbed  he  may 
maintain  a  writ  of  entry ;  if  it  has  not  been  disturbed 
he  cannot. 


TAX  LIENS  25 

FORECLOSUBE 

In  several  of  the  states  an  attempt  has  been  made 
by  statute  to  provide  a  system  of  giving  greater 
security  to  a  tax  title  and  of  extinguishing  the  right 
of  redemption,  by  means  of  a  bill  in  equity  for  fore- 
closure. Tliis  proceeding  cannot  be  instituted  until 
after  the  expiration  of  the  time  allowed  by  law  for 
voluntary  redemption.  The  plaintiff  in  the  suit  is 
the  holder  of  the  tax  title,  that  is,  the  person  who  pur- 
chased at  the  tax  sale  or  his  assignee,  and  the  defend- 
ant is  the  owner  of  the  property  subject  to  the  tax 
title  if  he  is  known  or  could  have  been  discovered  by 
reasonable  diligence,  otherwise  the  person  or  persons 
to  whom  the  land  was  assessed,  even  if  it  is  neces- 
sary to  follow  the  tax  list  by  designating  the  defend- 
ants as  ^* unknown  owners."  Service  in  such  case  has 
to  be  made  by  publication.  All  persons  having  such 
interest  in  the  property  as  would  entitle  them  to 
redeem  should  also  be  made  parties  defendant.  The 
defendants  may  either  attack  the  validity  of  the  as- 
sessment or  sale,  or  tender  the  amount  due,  and  in 
such  case  will  be  allowed  to  redeem.  If  the  judgment 
directs  foreclosure  it  will  cut  off  all  pre-existing 
liens  and  other  interests  in  the  property,  and  will  be 
conclusive  as  to  all  matters  in  issue  and  will  not  be 
subject  to  collateral  attack. 

TAX  LIEN  AS  ENCUMBRANCE 

If  a  deed  containing  a  covenant  against  encum- 
brances is  delivered  after  the  date  when  the  lien  for 
taxes  upon  the  property  for  the  current  year  com- 


26  MODERN  AMERICAN  LAW  LECTURE 

mences,  even  if  the  taxes  have  not  been  actually 
assessed,  if  such  taxes  have  not  been  paid,  the  cove- 
nant is  broken  as  soon  as  it  is  made  and  the  purchaser 
can  sue  on  it  at  once ;  but  he  can  recover  only  nominal 
damages  if  his  possession  has  not  been  disturbed  and 
he  has  not  paid  the  tax  at  the  time  of  the  trial.  If  he 
has  paid  the  tax,  he  is  entitled  to  recover  the  full 
amount  of  it,  without  apportionment,  and,  in  addi- 
tion, such  other  necessary  expenses  as  he  has  been 
put  to  in  removing  the  encumbrance.  Of  course,  if 
the  taxes  of  the  previous  years  have  not  been  paid, 
even  if  not  assessed  to  the  vendor  who  has  given  the 
covenant,  and  the  lien  has  not  expired  by  lapse  of 
time,  or  if  the  land  has  been  sold  for  non-payment  of 
such  taxes,  the  covenant  against  encumbrances  is 
broken.  It  is  incumbent  upon  the  purchaser,  in  an 
action  at  common  law  for  breach  of  the  covenant,  to 
show  that  there  was  a  real  encumbrance,  and  if  it 
appears  that  the  tax  had  been  improperly  assessed 
upon  the  property,  or  that  the  lien  had  been  lost  by 
invalid  proceedings  for  its  enforcement,  there  is  no 
encumbrance  and  consequently  no  liability.  A  mere 
error  in  the  assessment  which,  though  it  invalidates 
the  tax  may  be  corrected  by  reassessment,  is  a  defense 
in  an  action  of  this  kind,  for  it  is  usually  provided 
that  there  is  no  lien  on  the  land  if  there  is  an  aliena- 
tion before  reassessment. 

LIEN  FOR  SPECIAL  ASSESSMENT  AS  ENCUMBRANCE 

When  real  estate  is  conveyed  with  a  covenant 
against  encimibrances,  the  existence  of  a  lien  on  the 
property  for  a  special  assessment  or  betterment  is  of 


TAX  LIENS  •'!  27 

course  a  breach  of  the  covenant,  and  the  right  of  the 
purchaser  or  his  assigns  to  sue  for  the  breach  is  the 
same  as  when  the  encumbrance  consists  of  a  lien  for 
the  general  tax.  When  the  covenant  is  not  against 
encumbrances  generally  but  refers  in  terms  to 
*' taxes"  as  a  subject  of  exclusion  or  inclusion, 
*' taxes"  will  or  will  not  be  held  to  signify  special  as- 
sessments according  as  the  intent  of  the  parties  is 
indicated  by  the  context.  The  encumbrance  begins 
upon  the  date  of  the  order  for  the  establishment  of 
the  public  improvement  upon  which  the  assessment 
is  based,  even  if  the  assessment  is  not  actually  made 
until  later,  and  consequently  a  vendor  is  liable  upon 
his  covenant  if  there  has  been  such  an  order  prior  to 
his  conveyance,  even  if  he  knew  nothing  about  it,  no 
land  of  his  was  taken,  and  no  assessment  was  in  exist- 
ence at  the  time  of  the  conveyance.  It  is  the  liability 
to  an  assessment  that  constitutes  the  encumbrance; 
and  the  liability  is  an  encumbrance  upon  the  land 
when  it  accrues,  even  though  its  amount  may  not  be 
known  and  the  present  right  of  enforcement  may  not 
come  into  existence  until  the  assessment  is  afterward 
made.  Accordingly  if  the  first  assessment  is  invalid 
on  account  of  some  technical  error,  but  the  proper 
officers  could  correct  the  error  by  proceedings  in  due 
form,  and  re-assess  the  same  amount  upon  the  land 
and  sell  the  land  if  the  re-assessment  was  not  paid, 
such  error  in  an  assessment  is  no  defense  in  an  action 
on  a  covenant  against  encumbrances.  If,  however, 
the  only  statute  under  which  an  assessment  could  have 
been  made  at  the  time  of  the  conveyance  was  uncon- 
stitutional, or  the  improvement  was  constructed  in 


28  MODERN  AMERICAN  LAW  LECTURE 

such  a  manner  that  under  the  exiisting  statutes  no 
valid  assessment  could  have  been  levied,  a  valid  as- 
sessment, authorized  by  a  statute  enacted  after  the 
conveyance,  is  not  a  breach  of  the  covenant,  because 
when  the  deed  was  given  there  was  no  liability  to 
assessment  and  consequently  no  encumbrance. 

CLAIM  FOR  REIMBURSEMENT 

When  one  is  obliged  to  pay  taxes  assessed  on  an- 
other to  save  his  own  property  from  levy  and  sale, 
under  some  circumstances  he  will  be  subrogated  to 
the  tax  collector's  right  against  the  land  itself,  and 
his  claim  for  reimbursement  will  constitute  a  lien  on 
the  land  which  a  court  of  equity  will  enforce ;  but  the 
mere  fact  that  the  property  is  assessed  to  another  and 
that  as  between  the  tax  collector  and  the  parties  the 
other  party  is  the  one  primarily  liable  for  the  tax  is 
not  sufficient.  One  who  buys,  by  quitclaim  deed  with- 
out covenants,  property  upon  which  a  tax  has  been 
assessed  to  the  vendor,  and  pays  the  tax  to  avoid  a 
sale  by  the  tax  collector,  cannot  call  upon  the  vendor 
to  reimburse  him.  When,  however,  the  parties  have 
agreed  between  themselves  that  one  of  them  is  to  pay 
the  tax  on  the  property,  and  the  one  who  has  agreed 
to  pay  the  tax  fails  to  pay  it,  and  the  other  party  is 
obliged  to  pay  the  tax  to  save  his  interest  in  the  prop- 
erty from  being  wiped  out  by  the  sale  of  the  land  for 
the  non-payment  of  the  tax,  he  is  entitled  to  reim- 
bursement, either  in  an  action  at  law  or,  by  subro- 
gation to  the  tax  collector's  lien,  in  equity. 

When  there  are  different  estates  or  interests  in  a 
parcel  of  real  estate  and  there  is  no  express  agree- 


TAX  LIENS  29 

ment  among  the  holders  of  the  different  estates  or 
interests  in  regard  to  the  payment  or  apportionment 
of  the  tax,  and  the  general  owner  or  the  occupant  to 
whom  the  tax  on  the  property  is  assessed  does  not 
pay  the  tax,  and  the  tax  collector  is  about  to  levy  on 
the  land,  the  holder  of  one  of  the  other  estates  or  in- 
terests may  be  obliged  to  pay  the  tax  to  prevent  his 
interest  from  being  wiped  out.  In  such  a  case  he 
should  in  justice  be  allowed  to  call  upon  the  holders 
of  the  other  interests  for  reimbursement  or  contribu- 
tion, and,  as  the  failure  to  pay  the  tax  would  fre- 
quently indicate  insolvency  on  the  part  of  the  person 
thus  delinquent,  in  most  cases  the  rights  of  the  person 
paying  the  tax  w^ould  not  be  fully  protected  without 
some  greater  security  than  a  mere  personal  right  of 
action  against  the  delinquent.  The  matter  is  largely 
regulated  by  statute;  a  tenant  obliged  to  pay  the 
tax  may  deduct  the  amount  paid  from  his  rent  and  a 
mortgagee  may  add  the  sum  paid  to  his  mortgage, 
but  even  in  the  absence  of  statute,  on  general  equi- 
table principles,  the  courts  are  inclined  to  recognize 
the  existence  of  a  lien  in  all  cases  of  the  payment  of 
a  tax  upon  real  estate  by  the  holder  of  an  interest 
other  than  the  fee.  Even  when  a  tax  is  paid  by  one 
having  no  interest  in  the  land,  there  is  some  authority 
for  allowing  him  a  lien  for  reimbursement. 


fla^^dA 


Ljaulord 

1    GAYlAMOUNTIi) 
'  PAMPHLET  BINDER 
''^■~'       Syrocuse,  NY. 
J^SS        Stockton,  Colif. 


iTHrM'i  W  r,|firjAI   I  W'MUWi  'A'  "..V 


jil  II    HI  Iml  linlllll    llllllli  llni  1    in  I  III   I 

AA    000  776  916    9 


A 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 

This  book  is  DUE  on  the  last  date  stamped  below. 


JUL  2  4  1975 


Form  L9-Series  4939 


